Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America.

• Author: Cheng, Edward K.
• Position: Book review

LAWS OF MEN AND LAWS OF NATURE: THE HISTORY OF SCIENTIFIC EXPERT TESTIMONY IN ENGLAND AND AMERICA. By Tal Golan. Cambridge: Harvard University Press. 2004. Pp. vii, 325. $49.95.

For over twenty years, and particularly since the Supreme Court's Daubert (1) decision in 1993, much ink has been spilled debating the problem of scientific evidence in the courts. Are jurors or, in the alternative, judges qualified to assess scientific reliability? Do courts really need to be concerned about "junk science"? What mechanisms can promote better decisionmaking in scientific cases? Even a cursory scan of the literature shows the recent explosion of interest in these issues, precipitating new treatises, hundreds of articles, and countless conferences for judges, practitioners, and academics.

To this literature, Professor Tal Golan (2) adds Laws of Men and Laws of Nature, a welcome and much-needed book-length work on the history of scientific evidence. The book, which derives from Golan's doctoral dissertation, can be roughly divided into two principal parts: The lion's share concentrates on nineteenth-century developments in England and the United States, often in the context of business-related civil litigation. The remainder looks at fin de siecle America, more narrowly focusing on the relationship between the legal system and three then-emerging technologies: blood microscopy, x-rays, and lie detectors. An epilogue attempts to tie these historical discussions to the modern day Frye-Daubert debates, but it is largely an afterthought and is appropriately separated as such.

Perhaps most salient among the book's goals is Golan's aspiration to bridge the divide between legal history and history of science by revealing a deeply symbiotic relationship between scientists and courts in the nineteenth century (pp. 1-2). As to Golan's success on this score, being a scientific evidence person as opposed to a historian, I defer to more qualified colleagues. (3) Instead, I would like to focus on Golan's other stated goal of providing historical context to the modern scientific evidence debates (p. 3). In this respect, the book performs a valuable service for modern reformers. After all, we have a natural tendency to think of scientific evidence problems as new: Daubert certainly is new; toxic torts are new; and "science" writ large perpetually seems new. But, as the accounts from Laws of Men and Laws of Nature emphatically remind us, the problem of scientific evidence is profoundly old (p. 4).

My chief regret is that Golan's treatment on this score fails to trace the problems and solutions of scientific evidence in any significant detail beyond the early 1900s. This is surely an unfair criticism, especially given his primary historiographic goal, but the modern field of scientific evidence could have really benefited from an unbroken account to the present. Indeed, if we supplement and update Golan's discussion--as I hope to do in a limited way in this Review--we quickly see that the problems and proposed solutions are not just old but also frustratingly recurring.

1. Folkes v. Chadd

   Laws of Men and Laws of Nature opens with Folkes v. Chadd (1783), (4) scientific evidence's origin tale of sorts. According to legend, in an epic act of judicial creation, Lord Mansfield approved and set in motion the modern system of adversariai experts (pp. 6, 41-44). As Golan skillfully demonstrates through a detailed reconstruction of the case, however, like most origin tales, the Folkes fable turns out to be overly simplistic and triumphalist (p. 44). Lord Mansfield, it appears, couldn't have cared less about "inaugurating a new practice of calling experts as partisan witnesses" (pp. 6-7). That dubious distinction apparently belongs to no one person but instead to the gradual accretion of adversarialism and party control in the face of an oddly complacent and perhaps overconfident eighteenth-century English judiciary (pp. 50-51).

   Blame issues aside, Golan's account of Folkes provides a look into late-eighteenth-century litigation that is fascinating not for its curiosities but rather for its parallels to modern cases. Indeed, it seems that the broader theoretical questions that shadow scientific evidence cases and commentators today were present from the very beginning.

   The setting for the Folkes drama was Wells Harbor, a natural harbor surrounded by low-lying salt marshes in northeastern England. Human ingenuity (or hubris) being what it is, locals began draining the fertile marshland for agricultural use, counteracting the natural tidal flooding by constructing embankments. At the same time, the venerable harbor began silting up, threatening the shipping industry (p. 9). The harbor commissioners, of course, blamed the developers and their embankments. The landowners responded that the silting would have happened anyway (p. 22). A scientific battle royale was thus set.

   Just as they do today, the parties brought in their expert-champions. The harbor commissioners primarily relied on evidence that was anecdotal and experience based. Their parade of witnesses recounted the "rapid deterioration" of the harbor after the embankment's construction (p. 37). The commissioners also retained a group of distinguished civil engineers, "practical men of science, skilled practitioners," whose expertise came from their extensive experience and practice (pp. 26, 32). In contrast, the landowners turned to "scientists" as the term is understood today. Their star witness, John Smeaton, was a preeminent, well-published scientist, a member of the Royal Society, and a natural philosopher who believed that phenomena could be best explained by applying scientific principles (pp. 25, 30-31).

   The Folkes court thereby immediately confronted two fundamental issues that are still widely debated in scientific evidence circles. As an initial matter, should a court decide among competing scientific methodologies? The judges in Folkes exhibited the classic split. Chief Justice Gould in the lower court had no trouble excluding a witness who failed to measure up to standard (p. 39). Lord Mansfield, however, reversed. Unwilling to choose favorites, Mansfield left the decision up to the jury (p. 45). As Golan hints in his analysis, this Gould versus Mansfield debate is akin to the Hatfields and the McCoys. The "Goulds," like the Supreme Court in Daubert, find comfort in judicial gatekeeping against unreliable or "junk" expertise. The "Mansfields" maintain a more ecumenical view (p. 49).

   Presuming a gatekeeping role, courts then face the intractable question of what exactly constitutes good science. Modern scholars will recognize the two archetypal experts in Folkes: those who reason from anecdote and experience and those who reason from scientific principles. In a strange reversal of fortune, however, in Folkes, it was the scientist who was on the chopping block. A seemingly crabbed adherent to traditional experience-based expertise, Gould excluded the scientist's theories for being speculative and not based on direct observation (pp. 39, 44). On appeal, Mansfield in retrospect played the role of luminary, the progressive who gave the emerging science based in natural philosophy a chance. Two hundred years later, Daubert has come full circle, but with a twist. Today, with science safely seated on its throne, Daubert offers the opportunity of eliminating experience-driven expertise from the courtroom, as a number of commentators have advocated for handwriting and fingerprint analysis and the like. (5) One wonders if Mansfield would have been delighted or appalled.

2. Biased Experts and Conflicting Testimony

   To the modern observer, the elephant in the Folkes room is the problem of hired guns. Adversarial experts, after all, are routinely accused of distorting science in their parties' favor. As Golan notes, however, Lord Mansfield makes no mention of the problem in his opinion. Judicial myopia is unlikely--the common law of evidence obsessed over and routinely disqualified interested witnesses (p. 50). Golan offers an alternative, cultural explanation. Eighteenth-century English scientists were bound by gentlemanly codes of honor that closely tied social status to credibility and reputation (p. 50). Bias was therefore no concern at all, because the royal judges could trust men of science to provide unbiased, truthful opinions in court (p. 51).

   This assumption, of course, was sheer folly. In nearly no time at all, courts faced "a continuous parade of leading men of science zealously contradicting each other from the witness stand" (p. 54). In a chapter appropriately entitled "The Common Liar, the Damned Liar, and the Scientific Expert," (6) Golan shows this phenomenon plaguing early nineteenth-century English courts. Was a new sugar-refining process dangerously prone to explosions? One group of prestigious experts swore it was; predictably, another swore it was not (p. 56). Did a copper-smelting operation create acid rain and destroy crops? Proponents testified it did; some opponents remarkably characterized the acid as "a blessing, a shield against cholera and other diseases" (p. 74). Pollution emanating from alum works, contaminated well water, even the scope of the prized magenta dye patent and the definition of "coal"--all of the cases suffered the "familiar spectacle of two parties presenting flatly contradictory scientific evidence" (pp. 78, 80-81, 85, 91).

   Of course, scientists can reasonably disagree on occasion, even establishing two respectable schools of thought. But judges are no fools, and, as Golan describes, they quickly grew suspicious (p. 89). Either the scientists were dishonest, or they were helpless against clever manipulation by the attorneys. (7) In any event, the experts were certainly not helping to resolve any cases. Juries were "bewildered, perplexed, and left in despair as to knowing how to decide" (p. 87). Judges became increasingly frustrated and...